Academic

Also Known As . . . Completely Demeaning

By Tony Infanti

I’ve now seen a couple of different reports (here and now here) about how same-sex couples who legally change their names on their marriage certificates are unable to get the State Department to recognize that name change on the couple’s passports. In these cases, the State Department takes the position that the Defense of Marriage Act (DOMA) prevents the government from recognizing a name change effected in conjunction with a same-sex marriage. Nonetheless, the State Department will recognize the name change if the couple takes the separate (and completely unnecessary) step of going to court to get a judicial name change or if the new name is used publicly and exclusively for a period of at least five years (and you can document such use).

In a follow-up to one of these stories last week, it was reported that a woman who had changed her name when she married her partner in California last June was able to get her married name listed in the back of her passport under “the bearer is also known as.” Although this is a clever work-around to ensure that someone who has successfully changed her name on other documents (e.g., a state driver’s license) does not have documents with inconsistent names on them, it is nonetheless completely demeaning that lesbians and gay men are forced to choose between (1) incurring the extra expense and extra hassle of going to court to get a name change (when different-sex couples are not required to do so) or (2) treating their relationships as somehow counterfeit or false.

What’s worse is that this treatment is entirely gratuitous. There appears to be nothing that prevents the State Department from recognizing such a name change. Indeed, the passport regulations (22 C.F.R. § 51.25) detail when a name change will be recognized. A name change will be recognized when it is accomplished by court order or decree, on a naturalization certificate, or on a marriage certificate. A name change will also be recognized when that change occurs by operation of state law. In that case, “[a]n applicant must present operative government-issued legal documentation declaring the name change or issued in the new name.” Even if the State Department cannot recognize a name change on a same-sex couple’s marriage certificate, it should be able to acknowledge that the couple’s name has changed by “operation of state law” and accept a driver’s license from the state or some other “government-issued legal documentation … issued in the new name” as evidence of that change.

Furthermore, other agencies in the federal government have not reacted in the same way in similar situations. As the first story about the California woman reported, the local Social Security Administration office allowed her to change the name on her Social Security card merely by presenting her marriage certificate. And last year, the Department of Justice’s Office of Legal Counsel opined that the child of a lesbian couple that had entered into a civil union in Vermont was eligible for child?s insurance benefits when the non-biological mother became eligible for Social Security disability benefits—even though Vermont?s recognition of that parent-child relationship stemmed directly from the couple?s civil union. If the Social Security Administration and the Department of Justice can themselves work around DOMA, what prevents the State Department from doing the same thing?

-Tony Infanti

Full post as published by Feminist Law Professors on December 15, 2008 (boomark / email).